On July
25, 2000, after a four-day bench trial, Cook County Circuit
Court Judge Leo E. Holt found Gerald Winfield guilty of the
attempted murder of Jarlon Garrett. On direct appeal and
again on post-conviction review, the Illinois appellate
courts rejected Winfield's challenges to his conviction
and thirty-year prison sentence. By agreement of the parties,
a federal district court later reviewed Winfield's
conviction under a less deferential standard than called for
after the enactment of the Antiterrorism and Effective Death
Penalty Act of 1996 ("AEDPA"), 28 U.S.C. §
2254(d), and granted Winfield's petition for a writ of
habeas corpus. In a motion under Federal Rule of Civil
Procedure 59(e), the state then sought to reverse its
concession that the pre-AEDPA standard applied, which the
district court understandably denied as waived. Nevertheless,
we are compelled by AEDPA case law and principles of state
comity to reverse the district court's finding of waiver.

I.
Background

A.
Trial

The
state called two individuals who testified to witnessing the
shooting of Jarlon Garrett and Dominick Stovall on October
17, 1998. Stovall died of his wounds, but Garrett survived
and also testified about his recollection of the events that
day.

Of
these three eyewitnesses, the state trial judge found that
Lonnie Hartman was "[t]he only real credible
witness." Hartman testified that he was sitting in his
own car when a black car pulled up about thirty feet away
from him, after which a black male got out, began shooting at
Garrett and Stovall, then jumped back into the car and fled.
According to Hartman, the shooter was at least six feet tall
and wore no mask or anything else on his head. Still, Hartman
could not identify Winfield as the shooter.

The
second eyewitness, Lorenzo Curry, testified that from his
vantage point on the porch of a nearby house, he saw
Win-field and another, unidentified individual get out of a
black car and begin shooting at Stovall and Garrett. Curry
further offered a possible motive for the shooting,
testifying that he was present at a dice game in August of
1998, along with Garrett, Stovall, Winfield and his younger
brother, Terrance Win-field. During this game, Curry
testified that an argument ensued after Terrance bumped
Stovall, causing him to drop the dice and, Stovall claimed,
unfairly affecting his roll. However, the trial judge found
Curry's credibility "worthless" in light of
"extensive impeachment." In particular, the judge
found Curry's trial testimony inconsistent with his
earlier grand jury testimony and statements to the police in
several, material respects, including the number of shooters,
whether he could identify the shooters and whether the
shooters were wearing masks.

Finally,
Garrett, the surviving victim, corroborated Curry's
testimony about the dice game, testifying that Stovall and
Winfield began arguing over whether Stovall could attempt his
roll again. As for the shooting, Garrett testified that a
black car pulled up beside Stovall and him, at which point
Winfield emerged, pulled a mask over his face and began
shooting at them. The trial judge found Garrett's
credibility "not much better" than Curry's,
since he did not identify Winfield as the shooter at
"the earliest opportunity, " including when
Detective Kaizer and his partner interviewed Garrett while he
was receiving treatment at the hospital.

Instead, Winfield became a suspect only after Curry and
Garrett identified him as the shooter from a photo array.
Following his arrest, Curry and Garrett also repeatedly
identified Winfield in separate lineups. Winfield then gave
an oral statement to Detective Kaizer around 10:00 p.m. on
December 13, 1998.

Detective
Kaizer then contacted Assistant State's Attorney Laura
Forester, who prepared a written statement that Winfield
signed at approximately 1:00 a.m. on December 14. The written
statement, which was read into the record at trial, included
a basic description of the events surrounding an argument at
the dice game. Although Winfield reported that tensions had
subsided within a week, the statement also reflected that
members of Garrett's gang had beaten up his brother
Terrance "a couple of weeks after the dice game."
Moreover, the statement included Winfield's
acknowledgement that he began to carry a gun in his waistband
after Garrett shot at him "a couple of weeks"
before the shooting on October 17, 1998.

As for
the events on that date, the statement indicated that
Winfield got into a black car carrying fellow gang members,
and when he spotted Stovall and Garrett, he and another
passenger in the car jumped out and began shooting at them.
According to the statement, Winfield tried to re-enter the
car, but because it sped away before he could get back in, he
...

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